Public Input Sought on Proposed Enforcement Guidance on National Origin Discrimination
The 30-day input period ends on July 1, 2016
The U.S. Equal Employment Opportunity Commission (EEOC) announced earlier this month that it has voted to release for public input a proposed enforcement guidance addressing national origin discrimination under Title VII of the Civil Rights Act of 1964. EEOC's enforcement guidance documents express official agency policy and explain how the laws and regulations apply to specific workplace situations.
Title VII protects job applicants and employees from discrimination based on their race, color, religion, sex or national origin, as well as retaliation because a person complained about discrimination or participated in an employment discrimination investigation or lawsuit. Title VII prohibits employer actions that treat people unfavorably because of their national origin, including because they are from a particular country or part of the world, because of ethnicity, or because they appear to be of a certain ethnic background.
Increasing Complaints of National Origin Discrimination
The EEOC last published comprehensive guidance on national origin discrimination in 2002. Since then, the agency has received a steady stream of national origin complaints. In fiscal year 2015, approximately 11 percent of the 89,385 private sector charges filed with EEOC alleged national origin discrimination. These charges alleged a wide variety of Title VII violations, including unlawful failure to hire, termination, language-related issues, and harassment. In addition, there have been significant changes in the legal landscape, including new developments in the areas of human trafficking, job segregation and intersectional discrimination. All of these factors led the EEOC to conclude that a revised guidance on national origin discrimination was necessary. The following are some of the key provisions of the proposed guidance.
- Human Trafficking – The proposed guidance points out that employers that use the labor of human trafficking victims may violate not only criminal laws, but Title VII as well. Employers may subject these workers to harassment, job segregation, unequal pay, or unreasonable paycheck deductions, all of which are discriminatory if motivated by the workers' national origin or ethnicity.
- Customer Preferences – The proposed guidance provides that employers may not rely on the discriminatory customer preferences of coworkers, customers, or clients to justify discriminatory employment practices.
- English-Only Rules – The EEOC cautions that employers should tread carefully when basing employment decisions on linguistic characteristics. The proposed guidance explains that Title VII also may restrict employment decisions that are based on accent and English fluency. It explains that an employment decision may legitimately be based on an individual's accent if the accent “interferes materially with job performance.”
- Citizenship – Title VII applies regardless of an individual's immigration status, and regardless of whether the individual is legally authorized to work in the United States. Generally speaking, refusing to hire someone merely because he or she is not a U.S. citizen constitutes unlawful national origin discrimination under Title VII.
- “Promising Practices” – The proposed guidance also addresses retaliation, Title VII's application to American employers in foreign countries, and examples of “promising practices” employers can adopt to reduce risk in the areas of recruitment; hiring, promotion and assignment; discipline, demotion, and discharge; and harassment.
EEOC's draft guidance is available for review and comment here.
Further information about EEOC is available on its website at www.eeoc.gov.
After considering public input, the EEOC will publish a final guidance, which will replace the existing EEOC Compliance Manual, Volume II, Section 13: National Origin Discrimination. In the meantime, should you need to discuss national origin discrimination, or any of California's employment related laws, feel free to contact leading California employment lawyers at Kingsley & Kingsley. Call toll-free at (888) 500-8469 or click here to contact us via email.